United States District Court, D. Colorado
ORDER ON PLAINTIFFS' MOTION TO
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiffs' Motion,
brought pursuant to Federal Rule of Civil Procedure
59(e), requesting that this Court reconsider its
Order Granting Defendant's Motion for Separate Trials.
(Doc. ## 67, 76, 82.) For the following reasons, the Court
declines to reconsider its Order and maintains that separate
trials are appropriate.
under Rule 59(e) is reserved for extraordinary circumstances
and should only be granted due to (1) an intervening change
in the controlling law, (2) new evidence previously
unavailable, or (3) the need to correct clear error or
prevent manifest injustice. Figueroa v. Am. Bankers Ins.
Co. of Fla., 517 F.Supp.2d 1266, 1270 (D. Colo. 2006).
Plaintiffs argue that reconsideration is warranted under the
third circumstance-primarily to correct clear error by the
Court-because (1) the Court did not await Plaintiffs'
response and (2) there is significant overlapping evidence
supporting a single trial on all claims in this litigation.
The Court disagrees.
“nothing in [the local federal rules] precludes a
judicial officer from ruling motion at any time after it is
filed.” D.C.COLO.LCivR 7.1(d). The Court did not
therefore err in ruling in a speedy manner, particularly
considering that the Court and the parties were
simultaneously attempting to set this matter for trial.
Moreover, that the Court granted the motion “for the
reasons stated [in Defendant's motion], ” (Doc. #
76), does not mean that the Court “adopt[ed]
Defendant's version of contested factual and legal
matters” as Plaintiffs' contend (Doc. # 84 at 6).
This case has been pending since March 2017. Thus, before the
Court was, among other things, the Complaint, Answer,
Scheduling Order, briefing on two Motions for Summary
Judgment, and a Final Pretrial Order-all of which address the
claims at issue in this case. This Court reviewed these and
other documents in the record to assess the nature of each
Plaintiff's claims. The Court also reviewed the case law
relevant to the Court's decision on severance. After
doing so, the Court found persuasive Defendant's legal
argument for separating the trials under Federal Rule of
Civil Procedure 21. The Court did not, however, find in
Defendant's favor with respect to any of the contested
factual or legal issues governing liability in this case.
Thus, the Court is rather perturbed by Plaintiffs'
insinuation that this Court blindly adopted Defendant's
contentions without conducting its own factual and legal
analysis. Plaintiffs' argument is wholly without merit.
as this Court concluded in its order, the Plaintiffs'
claims in this case are better suited for severed trials.
Rule 21 gives this Court “considerable
discretion” when deciding whether to “sever any
claim against a party.” See, e.g., Lenon
v. St. Paul Mercury Ins. Co., 136 F.3d 1365, 1371 (10th
Cir. 1998). Claims may be severed under Rule 21 “when
the claims asserted do not arise out of the same transaction
or do not present some common question of law or fact.”
Preacher v. Wiley, 2009 WL 6409350, at *2 (D. Colo.
Nov. 20, 2009). Moreover, “[w]hen determining whether
severance is appropriate under Rule 21, the court considers
the convenience of the parties, avoiding prejudice, promoting
expedition and economy, and the separability of law and
logic.” E.g., Tab Exp. Int'l, Inc. v.
Aviation Sim Tech., Inc., 215 F.R.D. 621, 623 (D. Kan.
considerations support severing the Plaintiffs' claims
moving forward. They do not arise from the same transaction
and do not present the same questions of law or fact.
Plaintiffs-one tenured professor and another non-tenured
faculty member-each bring claims of retaliation based on
independent incidents of alleged misconduct separated in time
and resulting in distinct employment actions. Only one
Plaintiff brings a second claim for gender discrimination.
The Plaintiffs did not work in the same department or have
the same supervisor, and the circumstances leading to their
retaliation claims share minimal similarities. That both
suits allege retaliation and/or discrimination by the same
MSU staff members does, by itself, support joinder of the
claims. Any overlapping allegations are outweighed by the
risk of substantial prejudice to Defendant associated with a
joint trial and the need to expediently and efficiently try
the claims. Moreover, Plaintiffs' request for
reconsideration provides this Court with no new information
not presently before it when issuing the challenged Order,
and the Court sees no reason to reconsider the outcome.
these reasons, the Court, in its considerable discretion,
DENIES Plaintiffs' Motion to Reconsider its Order
Granting Defendant's Motion for Separate Trials. (Doc. #
82.) Pursuant to that Order and in accordance with Rule 21,
Plaintiffs' claims will be tried as entirely independent
actions, resulting in two separate judgments entered thereon.
See Chrysler Credit Corp. v. Country Chrysler, Inc.,
928 F.2d 1509, 1519 & n.8 (10th Cir. 1991).
 The Court denies Defendant's
request that it construe Plaintiffs' motion as falling
under Rule 60. Rule 59(e) applies to motions “to alter
or amend a judgment” filed no later than “28 days
after the entry of judgment.” Rule 60 applies to
motions filed within “a year after the entry of the
judgment.” Generally, “[w]hich rule applies to a
motion depends essentially on the tim[ing of the]
motion.” Van Skiver v. United States, 952 F.2d
1241, 1243 (10th Cir. 1991). Furthermore, the Tenth Circuit
has held that a motion will be considered under Rule 59(e),
“when it involves ‘reconsideration of matters
properly encompassed in a decision on the merits.'”
Phelps v. Hamilton, 122 F.3d 1309, 1323-24 (10th
Cir. 1997). Plaintiffs filed their motion within 28 days,
self-style it as a Rule 59(e) request, and request the
reconsideration of matters encompassed in the Court's
merits decision. The motion properly falls under Rule
 Plaintiffs note that the Court's
Order did not specify whether Rule 21 or 42(b) governs the
separate trials in this case. To be clear, the Court
separated the trials pursuant to Rule 21. Indeed, the
Court's Order granted Defendants' Motion for the
reasons set forth therein, including Defendants'
contention that severance under Rule 21 is appropriate. (Doc.
# 67 at 7.)
 Notably, Plaintiffs do not argue that
they would be prejudiced by severed trials. Plaintiffs only
generally contend that judicial efficiency and expediency
would be served by a joint trial; they base their entire
argument on the fact that the claims involve several of the
same witnesses. The Court finds that witness overlap is an
insufficient reason to support trying Plaintiffs' claims
together, particularly considering that the substance of